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HARBORSIDE CONNECTICUT LTD. PARTNERSHIP v. WITTE—DISSENT

BISHOP, J., dissenting. In assessing the viability of

a complaint, the focus of the court must be on the

allegations actually set forth in the complaint, and not

on unstated allegations that the court believes the complaint should have made. In this task, the court is

instructed to ‘‘construe pleadings broadly and realistically’’; (internal quotation marks omitted) Stotler v.

Dept. of Transportation, 142 Conn. App. 826, 839, 70

A.3d 114 (2013), aff’d, 313 Conn. 158, 96 A.3d 527 (2014);

and to ‘‘consider the allegations set forth in the complaint as well as those facts necessarily implied from

them, construing them in favor of the pleader.’’ Id. Further, in addition to admitting all facts well pleaded, the

motion to dismiss ‘‘invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts.’’ (Internal quotation marks

omitted.) Henriquez v. Allegre, 68 Conn. App. 238, 242,

789 A.2d 1142 (2002). Not only must the court construe

the facts in favor of the pleader, but also ‘‘every presumption favoring jurisdiction should be indulged’’;

(internal quotation marks omitted) Amodio v. Amodio,

247 Conn. 724, 728, 724 A.2d 1084 (1999); and ‘‘[e]ssential allegations may not be supplied by conjecture or

remote implication . . . .’’ (Internal quotation marks

omitted.) Stotler v. Dept. of Transportation, supra, 839.

The way a plaintiff characterizes its claims, therefore,

should be given great deference by the court as it construes a complaint for purposes of a motion to dismiss.

Here, though, the trial court took a different tack

and, in my view, the majority on review, has followed

this errant path. Rather than assessing the complaint

as made, the court determined what the complaint properly should have alleged and what claim the plaintiff

should have made, and then dismissed the complaint,

finding that the Probate Court, not the Superior Court,

has jurisdiction over the claim not made. In following

this path, the trial court and the majority have paid

no more than lip service to the well-worn guidance

regarding the court’s role in construing a complaint.

Specifically, the trial court construed the complaint

essentially as a collection action for services provided

to a decedent. The court stated: ‘‘[A] fair reading of the

complaint is that the plaintiff is seeking to recover for

a personal obligation of [the defendant’s husband, the

decedent], who is now deceased.’’ Having done so, the

court then concluded that such a claim should have

been brought against the decedent’s estate, if one exists,

and that, in any case, a claim of such nature as the

court divined is required, by statute, to be filed in the

Probate Court.1

In reaching this conclusion, the court

misread the complaint. It is also clear to me that the

court, contrary to the dictates of the law, did not con-
strue the facts in the light most favorable to the plaintiff

or indulge every presumption in favor of jurisdiction.

See Stotler v. Dept. of Transportation, supra, 142 Conn.

App. 832; Amodio v. Amodio, supra, 247 Conn. 728. By

any fair reading, the complaint is not a collection action

for health care services rendered. Rather, it is a claim

against the person who is alleged to have received payment for those services and who, the complaint alleges,

wrongfully retained those proceeds.

In count one of the complaint, the plaintiff alleges

conversion and asserts that it provided health care services to the decedent, who had health care insurance

to cover the cost of this care, and that the plaintiff

submitted a bill for its services to the insurer, which,

in turn, issued payment in the requested amount to the

defendant,the decedent’s widow. The complaintfurther

asserts that while the defendant initially issued a check

in the same amount to the plaintiff, the check was

returned for insufficient funds, and, thereafter, despite

the plaintiff’s request, the defendant has not issued

another check or forwarded the funds to the plaintiff.

The complaint further alleges that the money retained

by the defendant ‘‘belonged to or should have been possessed by the plaintiff.’’ (Emphasis added.) As a consequence, count one of the complaint asserts that ‘‘[t]he

plaintiff has been damaged and the defendant is liable

for any conversion of funds.’’ In count two of the complaint, the plaintiff alleges unjust enrichment and incorporates the factual basis from count one. The plaintiff

further alleges in count two that as a consequence of

the defendant’s actions, the defendant ‘‘received the

benefit of the proceeds’’ and was ‘‘unjustly enriched

in the amount of $34,200’’ and that the plaintiff ‘‘has

been harmed.’’

Importantly, nowhere in the complaint has the plaintiff claimed that the defendant acted in concert with

or on behalf of the decedent; nowhere in the complaint

has the plaintiff alleged that the decedent or his representative has failed to make payment for its services.

Instead, it appears that such claims, not made, were

imported into the complaint by the trial court, thus

converting it into a collection action over which, the

court concluded, it had no jurisdiction. Interpreting the

complaint broadly and realistically, as is required, the

crux of the plaintiff’s argument is that it was entitled

to $34,200 that the defendant has wrongfully retained

and withheld from the plaintiff. In coming to a contrary

interpretation, the trial court overstepped the reasonable bounds of the construction of pleadings. As this

court has previously stated, in this task, ‘‘[t]he complaint must be read in its entirety in such a way as to

give effect to the pleadings with reference to the general

theory upon which it proceeded, and to substantial justice between the parties. . . . Our reading of pleadings

in a mannerthat advances substantial justice means that

a pleading must be construed reasonably, to contain
all that it fairly means, but carries with it the related

proposition that it must not be contorted in such a way

so as to strain the bounds of rational comprehension.

. . .’’ (Internal quotation marks omitted.) Stotler v.

Dept. of Transportation, supra, 142 Conn. App. 839. In

the case at hand, the court, and the majority on review,

took the opposite tack by construing the complaint in

a mannerthat contorted its clearimport and thatresults

in a substantial injustice to the plaintiff.2

To be sure, there may be issues whether the complaint adequately sets forth a cause of action for conversion or for unjust enrichment, but the question of the

legal sufficiency of the complaint is not before the court.

The defendant’s motion to dismiss is premised on the

court’s lack of subject matter jurisdiction and not the

adequacy of the allegations and claims set forth in the

complaint. If the defendant perceives that the complaint

does not adequately set forth allegations that, if proven,

constitute conversion and unjust enrichment, or either

of them, the defendant may seek to attack the complaint’s claimed insufficiency through the vehicle of a

motion to strike. Practice Book § 10-39 (a). If such a

motion were to be granted, the plaintiff would then

have the option of attempting to restate its cause with

appropriate allegations. Practice Book § 10-44. In the

case at hand, however, the plaintiff’s cause has been

ousted from court, leaving the plaintiff with no reasonable recourse against the defendant with the consequence that the defendant may be in possession of funds

that rightly belong to the plaintiff and which she may

now retain against law and justice.

Since, unlike my colleagues in the majority, I believe

the trial court erroneously dismissed the complaint, I

would reverse the judgment of dismissal and remand

the matter to the trial court with direction that the

motion to dismiss be denied and forfurther proceedings

as appropriate.

Accordingly, I respectfully dissent.3

1

Indeed, in a long footnote, the majority sets forth the basic jurisprudence

that claims against the estates must be filed in Probate Court. See footnote

6 of the majority opinion. While I agree, in the main, with this proposition,

it is wide of the mark, as the action we review is not a claim against a

decedent or an estate and does not involve the settlement of an estate,

which, in this case, does not even exist. Rather, quite simply, it is a claim

against a third party, alleging that the third party has received and wrongfully

retains funds that belong to the plaintiff. Thus, because this is not a claim

against an estate, it does not properly lie within the Probate Court’s jurisdiction, and all the language in footnote 6 of the majority regarding the jurisdiction of the Probate Court is not germane to the issue at hand. The balance

of footnote 6 refers to a 1915 Connecticut Supreme Court case, Slattery v.

Woodin, 90 Conn. 48, 96 A. 178 (1915), in which the issue was whether a

party who appeals from a decision of the Probate Court is constitutionally

entitled to a trial by jury in the Superior Court that is now sitting as a

Probate Court on appeal. The court answers that question in the negative,

distinguishing probate matters from civil actions to which the constitutional

right attaches. Finally, footnote 6 contains an unsupported implication that

the complaint is somehow a ‘‘creative pleading,’’ the utilization of which

the majority believes violates an unstated legislative policy. If, in a health

care provider’s action against a person who possesses and retains funds

that are allegedly the property of the plaintiff, such a claim somehow violates
a policy against ‘‘creative pleading,’’ if such a policy even exists, I invite the

majority to inform the reader of the nature of the policy thus violated and

to provide support for such an assertion.

2 The import of the trial court’s decision is that in order for the plaintiff

to seek the funds to which it claims an entitlement, the plaintiff must bring

an action against the estate even though there is no claim that the estate

is in possession of the funds. Because the record reflects that no estate

exists, this task would require the plaintiff to first seek the creation of an

estate in the Probate Court and then to bring a claim against the estate in

the Probate Court, regardless of whether it is solvent, with the apparent

notion that the estate would then seek reimbursement from the defendant,

who presumably holds funds that properly belong to the estate. Neither

justice northe dictates of proper pleading construction suggest the necessity

of such a fool’s errand.

3 Because I would remand the matter to the trial court with direction to

deny the motion to dismiss, there is no need for me to respond to the

plaintiff’s second claim on appeal that the trial court declined to afford the

plaintiff an evidentiary hearing on the defendant’s motion to dismiss.